SECOND SECTION

DECISION

Application no . 63017/11 Nam ı k Kemal BATAR and others against Turkey

The European Court of Human Rights ( Second Section ), sitting on 16 September 2014 as a Committee composed of:

Helen Keller , President, Egidijus Kūris , Jon Fridrik Kjølbro , judges,

and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 5 August 2011 ,

Having deliberated, decides as follows:

THE FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

1 . The facts of the case, as submitted by the applicants and as they appear from the documents submitted by the m , may be summariz ed as follows.

2 . On 24 February 2009 at around 3.30 p.m. the applicants ’ relative Abdülmuttalip Batar , who was under the influence of alcohol at the time of the events went into a restaurant in the city of Gaziantep and asked the owner for money. Upon the rejection of his request, A . Batar threatened the restaurant owner. Employees of the restaurant took A . Batar outside, as he was upsetting other customers, and guided him to the park in front of the restaurant. A scuffle ensued between A . Batar and the employees.

3. Two police officers patrolling the area saw the scuffle and went to ask what was happening. Employees of the restaurant told the two police officers that A . Batar had disturbed the restaurant ’ s customers and threatened the owner. Police officers tried to arrest A . Batar and put him in the police car. A . Batar pushed police officers and another scuffle occurred. One of the police officers and A . Batar fell to the ground during the scuffle before they managed to get the latter into the police car.

4. Police officers drove A. Batar to the hospital to obtain a medical report. According to the medical report issued by the hospital on 24 February 2009 A . Batar arrived to the hospital at 4.03 p.m. Whilst in the hospital ’ s waiting room, he suddenly collapsed. He was immediately taken to a reanimation unit. Despite the intervention of medical staff to reanimate him, A . Batar died at 4.45 p.m.

5 . On the same day, an autopsy was carried out. Some superficial bruises on the right eyebrow and on the left knee, as well as some older small bruises and two scars related to previous surgical procedures were detected on A. Batar ’ s body. A laboratory analysis showed that there was 295 mg/dl of ethanol in the deceased ’ s blood. The reason of death was established as a heart attack.

6 . On 25 February 2009, the Gaziantep Public Prosecutor interrogated the two police officers who brought A. Batar to the hospital. The police officers stated that they did not beat the deceased but that a scuffle occurred between them and that they wanted to help him as he was drunk so they took him directly to the hospital after he calmed down . They stated that the deceased had collapsed at the hospital and had a heart attack.

7 . Other police officers who had come to help to control the person in the park in front of the restaurant were also heard as witnesses. They stated that the deceased person had been acting in violent manner and had attacked police officers who later took him under control.

8 . Some other eye witnesses made written statements before the public prosecutor and stated that the deceased had tried several times to kick the police officers who then had pushed him to the ground. One of the police officers had also fallen down at this stage. The police officers then managed to put A. Batar into the police car.

9 . On 27 February 2009, the applicants ’ relatives filed criminal complaints before the Gaziantep Chief Public Prosecutor and requested that an investigation be carried out in order to determine A. Batar ’ s cause of death and perpetrators to be found, if any. They also stated that they had heard that the deceased was beaten by some police officers.

10 . On 25 November 2009, the Istanbul Institute of Forensic Medicine issued a report to determine the cause of the applicants ’ relative ’ s death. The report which was based on the findings of the autopsy report stated that:

- the bruises on A. Batar ’ s body were not the cause of death;

- the quantity of ethanol found in A. Batar ’ s body was not at a life-threatening level;

- the heart of the deceased had the dimensions of 12 x 14 x 2 cm, the aorta diameter was 2.5 cm, the thickness of myocardium was 2 cm and that these measurements , together with the histopathological examination results showed that A. Batar died as a result of a pre-existing heart condition.

11 . On 15 February 2010, the Gaziantep Public Prosecutor rendered a decision not to prosecute in consideration of the police officers ’ statements, witnesses ’ statements, autopsy report and the report of the Istanbul Institute of Forensic Medicine. It concluded that A. Batar died as the result of heart disease and that there was no evidence to support the involvement of S tate agents in the death of A. Batar .

12 . The applicants filed an objection against that decision.

13 . On 2 June 2010 , the Kilis Assize Court rejected the applicants ’ objection and approved the decision rendered by the Gaziantep Public Prosecutor.

14 . The decision was notified to the applicants ’ lawyer on 2 August 2011.

COMPLAINT

15. The applicants allege that their relative may have died as a result of the scuffle he had with police officers in breach of Article 2 of the Convention. Invoking Articles 2 and 6 of the Convention, the applicants complain that no effective investigation had been carried out into the death.

THE LAW

16 . The Court considers that the essence of the applicants ’ complaints concerns the deprivation of their relative ’ s right to life and the effectiveness of the investigation into the death. The Court thus considers it appropriate to examine all of the above complaints solely from the standpoint of Article 2 of the Convention.

18 . It appears from the documents submitted that A. Batar was brought to hospital immediately following his arrest. Police officers took him to the hospital and not to the police station or to a “sobering-up” center in view of the fact that he was drunk. T he applicants could not prove a failure or omission on the part of the police officers or other public employees which would have aggravated the deceased ’ s state of health (see , a contrario , Saoud v. France , no. 9375/02, § § 98-102, 9 October 2007).

19 . In view of the above, the Court considers that the material in the case file does not enable it to conclude beyond all reasonable doubt that the applicants ’ relative died as the result of any State agent ’ s actions. It follows that this complaint should be r ejected as being manifestly ill ‑ founded.

20. As to the allegations related to the effectiveness of the investigation, the evidence in the case-file shows that immediately after A. Batar ’ s death, the public prosecutor in charge questioned witnesses present at the scene where the victim had been taken into custody; he also questioned the police officers involved at the scene as well as those at the hospital. An autopsy report and a medical report of the Istanbul Institute of the Forensic Medicine thoroughly examined the applicants ’ relative ’ s reason of death. It was established that A. Batar died as a result of a pre-existing heart condition and that the actions of the police officers did not cause the heart attack.

21. The Court finds that the evidence in the investigating file and the information provided show that the investigation was not devoid of effect and it cannot be maintained that the relevant authorities took no action with regard to the death of A. Batar . This complaint should also be rejected as being manifestly ill-founded.

For these reasons, the Court unanimously

Declares the application inadmissible.

Abel Campos Helen Keller Deputy Registrar President

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